An arbitration clause in the articles of association referring to arbitrators all disputes arising between the members, as well as between the company and the members, in relation to the corporate relationship or to the interpretation and performance of the articles of association and of the resolutions lawfully adopted by the corporate organs, and those brought by or against directors, liquidators and statutory auditors, encompasses the corporate action for directors’ liability.
The operation of the arbitration clause in the articles of association is not precluded by the fact that the director is called to answer in the capacity of de facto, rather than de jure, director, the clause being applicable also against a person called to answer for his conduct by reason of the functions actually performed within the company’s organisational structure.
While the arbitral tribunal has jurisdiction to determine, with the force of res judicata, the merits of the liability action, the ordinary court may hold, on a purely incidental basis, that the claim to the credit is not spurious, for the purposes of standing to bring the revocatory action brought in protection of that credit.